Begier v. StromBegier v. Strom
- Reporters:
- ,
- Before:
- Dossee
DOSSEE, J.
Plaintiff, acting in propria persona, filed suit against his (now former) wife for malicious prosecution and intentional infliction of emotional distress based upon her alleged conduct in (1) filing a false police report accusing plaintiff of molesting the couple‘s young daughter and (2) repeating that charge in the couple‘s pending dissolution action.
The trial court sustained defendant‘s demurrer as to the cause of action for intentional infliction of emotional distress but overruled the demurrer as to the cause of action for malicious prosecution. Thereupon, defendant moved for summary judgment on the cause of action for malicious prosecution, and the trial court granted the motion. Judgment was entered in favor of defendant. Plaintiff (now represented by counsel) appeals; defendant has not submitted a respondent‘s brief.
DISCUSSION
This appeal requires us to examine two statutory remedies afforded to those falsely accused of child abuse. First, in the Child Abuse and Neglect Reporting Act (
Plaintiff‘s second cause of action purports to state a claim for intentional infliction of emotional distress. As noted, defendant‘s demurrer was sustained as to this cause of action. (1) On appeal, we assume that all facts pleaded in the complaint are true, and we give the complaint a reasonable interpretation, reading it as a whole and its parts in context. We review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].)
(2a) Here, the complaint alleges that plaintiff and defendant were parties to a marital dissolution action. On August 12, 1990, about six weeks after filing the petition for dissolution, defendant filed a police report falsely accusing plaintiff of molesting the couple‘s young daughter. Defendant thereafter repeated the charges of molestation within the dissolution action.
In support of her demurrer, defendant asserted that the “thrust” of plaintiff‘s complaint for intentional infliction of emotional distress was that defendant had made false accusations within the domestic relations proceeding. And defendant argued that the publication of these accusations within a judicial proceeding was privileged under
(3)
(2b) There can be little doubt, as plaintiff himself seems to concede, that insofar as plaintiff alleges defendant made false accusations within the dissolution action, defendant‘s statements are privileged and cannot give rise to a cause of action for intentional infliction of emotional distress. (Nagy v. Nagy (1989) 210 Cal. App.3d 1262, 1270-1271 [258 Cal. Rptr. 787]; Twyford v. Twyford (1976) 63 Cal. App.3d 916, 924-925 [134 Cal. Rptr. 145].) But plaintiff is correct in his assertion that his complaint alleges more than statements made within the dissolution action; he also alleges that defendant filed a false police report.
The privilege for statements made in a “judicial proceeding” does not apply to statements made outside of the courtroom to nonparties unconnected to the proceedings. (Shahvar v. Superior Court (1994) 25 Cal. App.4th 653, 657-659 [30 Cal. Rptr.2d 597]; Susan A. v. County of Sonoma (1991) 2 Cal. App.4th 88, 93-94 [3 Cal. Rptr.2d 27]; see Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 219-220 [266 Cal. Rptr. 638, 786 P.2d 365].) Here, plaintiff alleged that defendant told the police — nonparties to the dissolution action — that plaintiff had molested his daughter. There is nothing on the face of the complaint to suggest that the police or the police report were connected to the pending litigation. We therefore hold that the “judicial proceeding” privilege does not bar plaintiff‘s cause of action for intentional infliction of emotional distress based upon defendant‘s conduct in filing a false police report.
The question remains, however, whether defendant‘s report to the police was nonetheless privileged as a statement made in any “other official proceeding authorized by law.” In one relatively recent case, the Court of Appeal held that a false police report is not absolutely privileged, as the police department is not a quasi-judicial body. Instead, the court held that a
Subsequently, however, three other courts have disagreed with Fenelon and have held that a report of suspected criminal activity made to an investigative agency is absolutely privileged. (Fremont Comp. Ins. Co. v. Superior Court (1996) 44 Cal. App.4th 867, 875 [52 Cal. Rptr.2d 211] [report to district attorney and Dept. of Insurance]; Passman v. Torkan (1995) 34 Cal. App.4th 607 [40 Cal. Rptr.2d 291] [letter to district attorney]; Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal. App.4th 1498, 1502 [28 Cal. Rptr.2d 722] [report to police].) In Passman, supra, 34 Cal. App.4th at pages 616-617, the court cited a string of precedent cases holding that a communication designed to initiate a criminal prosecution qualifies for immunity as a publication “in any other official proceeding authorized by law.” (E.g., Williams v. Taylor (1982) 129 Cal. App.3d 745, 753-754 [181 Cal. Rptr. 423] [report to police] Tiedemann v. Superior Court (1978) 83 Cal. App.3d 918 [148 Cal. Rptr. 242] [report to IRS regarding possible tax fraud]; see also Cote v. Henderson, supra, 218 Cal. App.3d 796, 806 [report to police and district attorney]; Brody v. Montalbano (1978) 87 Cal. App.3d 725, 732 [151 Cal. Rptr. 206] [complaint to school board]; Forro Precision, Inc. v. Intern. Business Machines (9th Cir.1982) 673 F.2d 1045, 1055 [report to police].)
Plaintiff contends that we need not resolve the conflict in the case law over
Although the statutory privilege of
Roe v. Superior Court (1991) 229 Cal. App.3d 832 [280 Cal. Rptr. 380], is instructive. In that case, a husband sued his former wife based upon the wife‘s allegedly false statements to her psychotherapist, accusing the husband of child abuse, which in turn led the psychotherapist to file a report under the Child Abuse and Neglect Reporting Act. The question for the appellate court was whether the husband was entitled to discovery of the wife‘s statements to her psychotherapist, and the court concluded he was. In so holding, the court observed that pursuant to
Although Roe involved only a discovery issue and is not squarely on point, the obvious implication from the opinion is that the Child Abuse and
Indeed, we discern within the Child Abuse and Neglect Reporting Act a legislative effort to balance, on the one hand, the public interest in ferreting out cases of child abuse so that the child victims can be protected from harm and, on the other hand, the policy of protecting the reputations of those who might be falsely accused. (See Roe v. Superior Court, supra, 229 Cal. App.3d at pp. 838, 845.) The Legislature has struck that balance by withholding immunity from those who knowingly make false reports of child abuse.7 If we were to hold that same conduct privileged under
II. Malicious Prosecution
(4) Plaintiff‘s first cause of action for malicious prosecution is based upon defendant‘s conduct within the dissolution action. Plaintiff alleges that defendant injected the false allegations of child molestation into the proceedings for the purpose of terminating plaintiff‘s relationship with his daughter.
The declarations submitted in connection with defendant‘s motion for summary judgment reveal that in the custody proceedings within the dissolution action the trial court heard conflicting opinions from several experts on whether plaintiff had molested his daughter. On September 6, 1991, in a document entitled “Intended Statement of Decision,” the trial court concluded that defendant (petitioner in the dissolution action) had failed to meet her burden of proving that plaintiff had molested the child. Custody was awarded to defendant, and plaintiff was granted visitation rights. Thereafter, in December 1991, plaintiff (respondent in the dissolution action) moved for sanctions against defendant pursuant to Civil Code section 4611 (now
In support of her motion for summary judgment, defendant argued, inter alia, that a cause of action for malicious prosecution will not lie in family law matters, citing Bidna v. Rosen (1993) 19 Cal. App.4th 27 [23 Cal. Rptr.2d 251]. The trial court agreed and granted defendant‘s motion. We affirm that ruling.
The plaintiff in an action for malicious prosecution must show “that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff‘s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice....” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 [118 Cal. Rptr. 184, 529 P.2d 608]; accord, Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 [254 Cal. Rptr. 336, 765 P.2d 498].)
In Bidna v. Rosen, supra, 19 Cal. App.4th 27, the court reviewed the existing case law and found “an abiding judicial reluctance” to entertain malicious prosecution actions arising out of family law proceedings, albeit for varying reasons. (P. 32.) First, in Twyford v. Twyford, supra, 63 Cal. App.3d 916, 922 the court held the wife‘s requests for admissions (essentially accusing her husband of forgery) within a contempt proceeding for failure to pay over a tax refund did not constitute a “separate proceeding” to support a malicious prosecution action. (See also Lossing v. Superior Court (1989) 207 Cal. App.3d 635, 638-639 [255 Cal. Rptr. 18].)8
Then in Chauncey v. Niems (1986) 182 Cal. App.3d 967 [227 Cal. Rptr. 185], the court held that the husband had failed to show that the wife‘s order to show cause (OSC) re contempt and OSC re modification of child visitation and support were terminated in his favor. The court reasoned that because the parties’ child visitation dispute was settled by mutual agreement it was not possible to infer guilt or innocence, favorability or unfavorability. (Id. at pp. 976-977.)9
In Green v. Uccelli, supra, 207 Cal. App.3d 1112, 1121-1123, the court held more broadly that withdrawing an OSC re contempt from the calendar
After reviewing these precedent cases, the court in Bidna v. Rosen, supra, 19 Cal. App.4th 27, concluded that “[t]he cases are ... heading in one direction, though they have not yet reached their destination: an absolute bar of malicious prosecution claims based on any kind of family law motion or OSC.” (Id. at p. 34.) The Bidna court examined the policy reasons favoring a “bright line rule” as well as the arguable inadequacy of family law remedies and held that no malicious prosecution action may arise out of unsuccessful family law motions or OSC‘s. (Id. at pp. 35-37.) The court concluded instead that even a spouse who is subjected to an egregious barrage of motions within the dissolution action is limited to recovering sanctions and attorney fees within the action itself. (Id. at pp. 36-38; see also Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d 863, 872-874.)
Plaintiff argues that Bidna should be distinguished from the present case on the ground that plaintiff was falsely accused of child abuse and is therefore entitled to the protection of
Plaintiff‘s reasoning is flawed. Plaintiff mistakenly presumes that a malicious prosecution action exists as an “other remedy” for one falsely accused within a child custody proceeding. It does not. As the Bidna court recognized, no court has ever extended the tort of malicious prosecution to family law matters. Indeed, the Bidna court explained that its true holding was not that malicious prosecution should be precluded as a remedy for abusive
We find the Bidna decision persuasive and follow it here. Accordingly, we conclude that the trial court properly granted summary judgment on plaintiff‘s cause of action for malicious prosecution.
The judgment is affirmed as to the cause of action for malicious prosecution, but the judgment is reversed as to the cause of action for intentional infliction of emotional distress. Costs are awarded to appellant.
Strankman, P.J., and Stein, J., concurred.